Wednesday, November 4, 2009

Shawhan on Lyman Trumbell on Birthright Citizenship

Mark Shawhan, Yale Law School, has posted Domicile and Birthright Citizenship, which is a student comment forthcoming in the Yale Law Journal. Here is the abstract:
This Comment argues that the contemporary debate on the meaning of the Citizenship Clause of the Fourteenth Amendment has overlooked a significant piece of historical evidence. Scholars such as Peter Schuck, Rogers Smith, and John Eastman have argued that the “subject to the jurisdiction” requirement of the Clause should, as a historical matter be read broadly, to, for example, exclude children born here of illegal immigrant parents from constitutional birthright citizenship. In doing so they lean significantly on the statements of Sen. Lyman Trumbull, who drafted the precursor citizenship language of the Civil Rights Act of 1866 and was an influential player in the debates over the Fourteenth Amendment.

Yet Trumbull actually held quite different views. In a previously-unconsidered 1866 letter he wrote to President Andrew Johnson summarizing the Civil Rights Act, Trumbull said that birthright citizenship for children born in the United States turned on whether the parents of those were living permanently, “domiciled,” here. In emphasizing domicile, which at that time turned merely on whether an individual was living permanently in a particular place, Trumbull rejected the consensualist position that a child’s citizenship depended on the political status of that child’s parents within the state, and the presence of a mutual consensual relationship between the parents and the sovereign. This Comment thus suggests that it is no longer tenable for consensualist scholars to rely on Sen. Trumbull’s statements as evidence for their views on the contours of birthright citizenship.
Image credit: Lyman Trumbull

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